Howbert v. Cawthorn

• Decision Date: 20 November 1902
• Citation: 100 Va. 649,42 S.E. 683
• Parties: HOWBERT et al. v. CAWTHORN.
• Court: Virginia Supreme Court

42 S.E. 683

100 Va. 649

HOWBERT et al.

v.CAWTHORN.

Supreme Court of Appeals of Virginia.

Nov. 20, 1902.

DEED—CONSTRUCTION—CONTINGENT REMAINDER—SALE ON EXECUTION.

1. A grantor conveyed certain land on trust for the use of his wife, with remainder in fee simple to his children living at the death of said wife, and the descendants of such as might be dead, and if there were no children, nor descendants of any such, living at the death of the wife, then to a certain person named. Held, that the remainderman who would take after the termination of the life estate could not be ascertained until the death of the life tenant, and therefore a child had no interest during the lifetime of the mother, but only a contingent remainder.

2. A contingent remainder cannot be sold for the benefit of the creditors of a possible remainderman.

Appeal from circuit court, Bedford county.

Suit by Ella Cawthorn against Mary E. Howbert and others. Judgment for plaintiff, and defendants appeal. Reversed.

Beasley & Moon and Wm. Eubank, for appellants.

Graham Clayton, for appellee.

HARRISON, J. This attachment proceeding in equity was instituted by the appellee against the appellant Mary E. Howbert, formerly Mary E. Thomas, a nonresident, alleging that appellant was entitled to an estate in remainder in certain real estate, and asking that the same might be subjected to the payment of a debt evidenced by bond executed by appellant to G. T. Cawthorn, and by him assigned to the appellee.

It appears that by deed of July 9, 1862, John F. Sale and wife conveyed to John Frederick Thomas, the father of appellant, certain real estate in Bedford City, upon trust, for the use of his wife, Lucy Ann Thomas, for life, with remainder "in fee simple to the children of the said John Frederick Thomas and the said Lucy Ann Thomas living at the death of the said Lucy Ann Thomas, and the descendants of such as may be dead, in equal shares by stocks; and if there be no such child or children, nor descendants of any such, living at the death of the said Lucy Ann, then the said John Frederick Thomas, if living, shall stand seised of said lot or parcel of land * * * in fee simple to his own use; and, if dead, the same shall vest in fee simple to the heirs at law of the said John Frederick Thomas."

John Frederick Thomas died, leaving surviving him his wife, Lucy Ann Thomas, the life tenant, and two children, who were bom to John Frederick Thomas and Lucy Ann prior to the execution of the deed of July 9, 1862, namely Mary E. Howbert, the appellant, and her brother J. Walker Thomas, all three of whom are still living.

A demurrer was filed to the bill by the appellant, which raises the sole question presented for decision by this appeal, — whether or not Mary E. Howbert owns an interest under the deed that can be subjected to the payment of her debts. The circuit court overruled the demurrer, holding that appellant was entitled to a vested remainder in one moiety of the real estate mentioned, and decreed a sale of the interest thus established to satisfy the debts that had been reported. This action of the lower court is assigned as error, it being contended on behalf of appellant that her interest in the land is not a vested remainder, but a contingent remainder, that cannot be subjected to sale.

It is true that the law prefers vested to contingent remainders, and this preference may lawfully and properly influence the mind in cases of doubtful construction; but it can never justify the courts in making a deed or will, or in straining the language used in order to make the estate created a vested, rather than a contingent, remainder. Olney v. Hull, 21 Pick. 311; Vashon's Ex'x v. Vashon, 98 Va. 170, 35 S. E. 457. In obedience to this disposition in favor of vested remainders, this court has held, where the question involved was the period to which words of survivorship related, that, in the absence of the expression of a particular intent, the survivorship has relation to the death of the testator. Martin v. Kirby, 11 Grat. 67. And in Hansford v. Elliott, 9 Leigh, 79, Judge Parker, in determining whether the words "surviving children" should be taken to refer to the period of the testator's death, or to the death of his widow, the tenant for life, says: "If to the former, the interest vested in all of the testator's children living at his death, and passed to their representatives; the time of distribution being alone postponed; if to the latter, then Elizabeth and Peter Manson, who alone survived the life tenant, were entitled to the whole property."

In the case at bar the language of the grantor is perfectly clear, leaving no room for question or doubt as to its meaning and purpose. After carving out the life estate in favor of Lucy Ann Thomas, the remainder is given to the children "living at the death of the said Lucy Ann Thomas"; and if there be no such child or children, nor the descendants of any such, "living at the death of the said Lucy Ann, " then over. This language is too plain for construction. In express terms, the period of survivorship is fixed at the death of Lucy Ann Thomas, the life tenant. It is manifest that the remaindermen, who are to take after the termination of the life estate, cannot be known or ascertained until the life tenant is dead, for it is not given to man to know who will survive a future event, itself, in point of time, the most uncertain of all events. It is therefore clear that appellant has no interest under the deed in question during the lifetime of her mother, Lucy Ann, but a contingent remainder. Her interest is dependent upon the condition precedent that she survive the life tenant. She may, therefore, never havean interest in the subject, for, if the life tenant should survive her, the estate would pass to others, whose identity cannot be now known or determined.

The only way in which the remainder in favor of appellant could be considered vested would be By construing the words of survivorship ("living at the death, " etc.) as creating a condition subsequent, instead of precedent; this latter being plainly the nature of the condition in the case at bar, both on principle and authority. Very often a remainder will be construed to be a vested estate upon a condition subsequent, liable to be devested by the happening of the contingency, rather than declare it to be a contingent remainder, as it would be if the condition were precedent. Graves, Real Prop. p. 194, note.

Prof. Graves, in his work on Real Property, after pointing out that in considering a remainder we must assume that it still exists as a remainder, and judge of its character as vested or contingent under the facts as they are at the moment the question arises, gives the following very clear and satisfactory definition of a vested remainder: "A remainder is vested when it is subject to no condition precedent, and is always ready, during its continuance, to come into the possession of a certain person, already existing and ascertained, on the determination of the particular estate, now or hereafter, in any manner whatsoever." And he adds that "any remainder not so ready is contingent." In a note to this definition, the learned author says: "It will be observed that the definition requires that the remainderman, at the time the question arises, should already be in existence and ascertained; and it is not enough, in order to consider the remainder now vested, that he will become ascertained at the moment the particular estate ends, and the possession becomes vacant. Thus there are cases where the same event that ends the particular estate ascertains the remainderman; and, whenever the possession becomes vacant, there will then be a certain person ready to take possession, as-in the limitation to A. for the life of B., remainder to the heirs of B., or to A. and B. for life, remainder to the survivor and his heirs. Here the remainder will vest and come into possession eo instant! on the death of B. in the one case, or the survivorship of A. or B. in the other, but meanwhile it remains contingent, because as yet there is no 'determinate person' in whom 'the estate is invariably fixed.' Nemo est hæres viventis, and who can now tell whether A. or B. will be the survivor? A test suggested by Prof. J. Randolph Tucker will clearly show that these remainders are contingent, viz.: Is the remainderman a person to whom you could give livery of seisin now, if his estate were present and not future? ...